United States District Court, E.D. Texas, Sherman Division
RESOURCE NOW GROUP, INC.
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion to Remand (Dkt.
#6). Having considered the relevant pleadings, the Court is
of the opinion that the Motion to Remand should be denied.
February 2017, Plaintiff Research Now Group, Inc.
(“Research Now”) employed Heather O'Shea
(“O'Shea”) as the Vice President of Ad &
Audience Research based in New York. In connection with her
employment, on February 27, 2017, O'Shea entered into a
Confidentiality, Non-Solicitation, Non-Completion and
Intellectual Property Assignment Agreement (the
“Agreement”) with Research Now. On or around June
2017, O'Shea accepted new employment as a Senior Vice
President of Client Services for Millward Brown Digital's
Media and Agency division.
31, 2017, Research Now filed its Original Petition against
O'Shea in the 429th Judicial District Court of Collin
County, Texas (Dkt. #3), asserting claims for breach of
contract and violations of the Texas Uniform Trade Secrets
Act, seeking to enjoin O'Shea from directly competing
October 10, 2017, O'Shea filed a Notice of Removal in
this Court based on diversity jurisdiction (Dkt. #1 at p. 3).
On October 30, 2017, Research Now filed a Motion to Remand
(Dkt. #6), asserting that the parties consented to a
mandatory forum-selection clause in the Agreement, which
provides that a Texas state court has jurisdiction over any
disputes arising under the Agreement. The Agreement states in
This Agreements shall be subject to the laws of the State of
Texas, exclusive of its choice of law provisions, and the
courts of the State of Texas shall have jurisdiction over any
and all disputes arising from or pertaining to this Agreement
to the extent consistent with Section 7.8.
(Dkt. #7 at ¶ 7.7).
November 13, 2017, O'Shea filed a response (Dkt. #9). On
November 20, 2017, Research Now filed a reply (Dkt. #10).
28, Section 1441 of the U.S.C., the general removal statute,
allows a defendant to remove a case to the federal district
court for the district and division within which the action
is pending, provided that the district court possesses
original jurisdiction. 28 U.S.C. § 1441(a). A federal
district court possesses original jurisdiction if the parties
could have initially filed in federal court pursuant to 28
U.S.C. §§ 1331-1334. Title 28, Section 1332(a) of
the U.S.C. confers jurisdiction on district courts over civil
actions between citizens of different states where the amount
in controversy exceeds $75, 000. 28 U.S.C. § 1332(a).
For jurisdiction to exist under Section 1332, diversity must
be complete in that no plaintiff and no defendant may be
citizens of the same state. Wis. Dep't of Corr. v.
Schacht, 524 U.S. 381, 388 (1998). As a general rule,
the burden of proving that federal jurisdiction exists falls
on the removing party. Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
1446 establishes the procedures by which a defendant may
remove a suit filed in state court to federal court.
See 28 U.S.C. § 1446. A notice of removal must
normally be filed within thirty (30) days after the defendant
receives the initial pleading setting forth the claim for
relief upon which the action is based, or within thirty (30)
days of service of summons if the state's rules of
procedure do not require the defendant to be served,
whichever period is shorter. 28 U.S.C. § 1446(b).
Similarly, 28 U.S.C. § 1447 establishes the procedures
following removal. Specifically, Section 1447 provides that
“[a] motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction must be
made within 30 days after the filing of the notice of removal
. . . .” 28 U.S.C. § 1447(c). In contrast, if a
court finds that it lacks subject matter jurisdiction, the
court must remand the case, even if the thirty (30) days have
contends that the forum-selection clause is unenforceable
because the Agreement was never fully executed. She reasons
that the parties intended the Agreement to require both
parties' signatures as a condition precedent to its
enforceability, and because Research Now never signed the
Agreement, the Agreement was never fully executed. In the